Citation Nr: 1523420
Decision Date: 06/03/15 Archive Date: 06/16/15
DOCKET NO. 10-45 071 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUE
Entitlement to recognition as the Veteran's surviving spouse for purposes of Dependency and Indemnity Compensation benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Mac, Counsel
INTRODUCTION
The Veteran served on active duty from June 1969 to March 1972. He died in July 2008. The appellant is seeking recognition as his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).
The appellant was scheduled for a Board hearing in October 2011. However she failed to report for the hearing.
The Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. A brief dated in April 2015 from the appellant's representative is part of VBMS. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal.
FINDINGS OF FACT
1. The appellant and the Veteran were in a relationship for over 1 year prior to being married in a ceremonial marriage on October [redacted], 2007.
2. The Veteran died on July [redacted], 2008, less than one year after the ceremonial marriage took place.
3. Throughout their relationship, the appellant and the Veteran resided in the state of Arkansas.
4. The appellant and the Veteran did not have children together.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of consideration for Dependency and Indemnity Compensation benefits are not met. 38 U.S.C.A. §§ 101, 103, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54, 3.102 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.
The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. On the claim decided herein, the facts are not in dispute. As the analysis below demonstrates, the appellant is not entitled to the benefit sought as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). There is no further assistance that would be reasonably likely to assist the appellant in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2).
Analysis
The Veteran died on July [redacted], 2008. In May 2009 the appellant filed a claim for Dependency and Indemnity Compensation benefits.
VA Dependency and Indemnity Compensation (DIC) benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54(c) .
Consequently, "surviving spouse" status is a threshold requirement for DIC benefits. For a person to establish recognition as a surviving spouse of a Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). There are various methods in which a valid marriage may be established for VA benefit purposes. See 38 C.F.R. § 3.205.
A "surviving spouse" is defined as a person who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3) ; 38 C.F.R. § 3.50. The Board notes that on June 26, 2013, the United States Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA), which limited the definition of marriage for purposes of Federal benefits to spouses of the opposite sex, was unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013). Although the matter of same sex marriage is not at issue in this appeal, it appears that VA's definition of "surviving spouse" is unconstitutional. Indeed, the Title 38 provisions defining a spouse as a person of the opposite sex are substantively identical to definition in Section 3 of DOMA that the Supreme Court declared unconstitutional.
To qualify as a surviving spouse, the person's marriage to the Veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Section 3.1(j) provides that a "marriage" is "a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued." 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j).
Section 3.52 provides that, where an attempted marriage of a claimant to the Veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and (b) the claimant entered into the marriage without knowledge of the impediment, and (c) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran's death. 38 C.F.R. § 3.52 .
The appellant's marriage certificate shows that she and the Veteran were married on October [redacted], 2007. She contends that in March 2006 she and the Veteran began cohabitating and were unable to immediately get married due to his illness. See October 2008 statement of marital relationship and November 2009 notice of disagreement.
The Veteran died in July 2008, less than one year after the ceremonial marriage commenced. The Certificate of Death shows that the Veteran was married at the time of his death, and lists the appellant as his surviving spouse. There is no indication that the appellant ever remarried, or held herself out openly to the public as the spouse of another, following the Veteran's death.
In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 C.F.R. § 3.1(j). The appellant and the Veteran resided in the state of Arkansas. The state of Arkansas does not recognize common-law marriage. The statutes of the State of Arkansas provide that marriage is considered in law a civil contract to which the consent of the parties capable in law of contracting is necessary. ARK. CODE ANN. § 9-11-101. Persons contracting marriage in the State of Arkansas are required to first obtain a license from the clerk of the county court of some county in Arkansas. ARK. CODE ANN. § 9-11-201. The parties must also submit a properly executed solemnization of the license and ceremony. ARK. CODE ANN. § 9-11-202. A marriage must be solemnized by specified state officials. ARK. CODE ANN. § 9-11-213. Common-law marriages may not be created by law in Arkansas. Brissett v. Sykes, 313 Ark. 515, 517, 855 S.W.2d 330, 332 (1993).
Regardless of the fact that the appellant cannot establish a valid common law marriage, VA may still deem the marriage as valid for VA purposes. VA's General Counsel held that lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996).
In this case, there is an obvious legal impediment to a common law marriage of the appellant and the Veteran, because the state of Arkansas does not recognize common law marriages. Furthermore, the appellant has reported that she and the Veteran did not have a child and that she was aware that the state of Arkansas did not recognize common law marriage. See October 2008 statement of marital relationship; May 2009 claim.
The appellant has asserted that the Arkansas marriage law is archaic and that the Veteran relied on VA benefits to provide for her after his death. See November 2010 Form 9 Appeal. The Board sympathizes with the appellant's situation however under the statutes and regulations there is no choice but to find that the requirements of 38 C.F.R. § 3.52 for a "deemed valid" marriage are not satisfied. Hence, entitlement to DIC benefits as the Veteran's surviving spouse is not warranted.
Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The benefit of the doubt doctrine is inapplicable because the issue involves the appellant's status as a claimant. See, e.g., Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992).
ORDER
Entitlement to recognition of the appellant as the surviving spouse for purposes of Dependency and Indemnity Compensation benefits is denied.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs